The judge overseeing the Aurora theater shooting case has upheld the law underlying 82 of the 164 counts of murder facing suspect James Holmes.

Judge Carlos Samour wrote in an order issued Friday that Colorado's "extreme indifference" murder law is constitutional and, so, the charges against Holmes would stand. Holmes' lawyers had challenged the law by arguing it is unconstitutionally vague and arbitrary.

In a 29-page order that goes so far as to give a brief history of murder laws in Colorado, Samour concluded that the law's language is not in doubt and that state appellate courts have repeatedly upheld the law.

"Colorado has recognized some form of (extreme-indifference murder) for more than a century, and courts across this state have managed to instruct juries on it," Samour wrote. "This is not surprising, since the elements of the crime of Murder in the First Degree — Extreme Indifference are clear."

Holmes is charged with killing 12 people and wounding dozens more in an attack on the Century Aurora 16 movie theater on July 20, 2012. For each of the slain victims and 70 named injured victims, Holmes is charged with two different kinds of murder or attempted murder. The first is murder or attempted murder with intent. The second is murder or attempted murder with extreme indifference. Holmes also faces explosives-possession charges and crime-of-violence charges.

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In extreme-indifference charges, prosecutors are alleging that a defendant acted "with universal malice" and without regard to "the value of human life generally." Such cases often involve, for instance, a defendant accused of shooting indiscriminately into a crowd without targeting anyone specifically.

In a motion filed in June, Holmes' attorneys argued that the law is too vague for it to be applied consistently. Without better clarity, they argued, defense attorneys don't know how to rebut the charge.

"From the language of the statute, it is entirely unclear whether this element is a mental state, or whether it is simply a factual circumstance," Holmes' lawyers wrote in their motion.

Samour, though, ruled that the Colorado Supreme Court had already decided that the law was intended to "proscribe killing acts of a particular description" and not create a new criminal mental state.

"Hence," Samour wrote, "there is nothing unclear about it."

Also Friday, a register of actions in the case noted that defense attorneys have provided Samour with a sealed envelope in the continuing debate over whether a Fox News reporter should have to reveal her sources for a story about a notebook Holmes mailed to his psychiatrist.

Samour has previously said he is more inclined to force the reporter, Jana Winter, to testify if the notebook is an important piece of evidence in the case. Earlier this month, Samour offered to streamline the arguments by looking over the notebook personally to determine its "potential materiality and significance at trial."

The sealed submission suggests that Holmes' attorneys have taken Samour up on that offer.

Winter could face jail time if Samour orders her to testify and she refuses. She is next scheduled to appear in court Aug. 19 for a brief hearing.

John Ingold: 303-954-1068, jingold@denverpost.com or twitter.com/john_ingold

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